– section 19 of the Summary Offences Act 1966
This charge is generally laid in situations where a person exposes themselves in public. Section 19 of the Summary Offences Act 1996 was previously titled ‘Obscene Exposure’. This was repealed and replaced by ‘Sexual Exposure’ on 1 July 2017. If the alleged offence occurred before 1 July 2017, you will be charged under the old section.
This offence is the sort of charge regularly heard in the Magistrates’ Court.
Examples of Obscene Exposure
- You are getting changed in your living room, which faces the street, and you deliberately expose your genitals to people walking past.
- You are drinking with friends, and you do a ‘nudie run’ down a busy road.
What is the legal definition of Sexual Exposure?This charge will be made out where an accused intentionally exposes their genitals in a sexual way and in a public place.
LegislationThis legislation comes from section 19 of the Summary Offences Act 1966.
Elements of the offenceThe prosecution must prove the follow beyond reasonable doubt:
- The accused exposed their genitals; and
- The accused intended to expose their genitals; and
- The exposure is sexual; and
- The exposure is in a public place.
The prosecution must prove that the accused exposed their genitals. Genitals has its ordinary meaning – it includes organs of reproduction but would not include breasts. It also includes surgically altered or constructed genitals.1
Whether the accused exposed his or her genitals will be a matter of fact. It is sufficient to expose one’s genitals ‘to any extent’. For instance, the tip of the penis would be sufficient.
Element 2: Did the accused intend to expose their genitals?
It would not be enough for the accused to inadvertently expose their genitals. For instance, if a person was wearing a dress, and the wind unexpectedly caused the dress to fly up and expose the wearer’s genitals, this would not amount to ‘intent’.
Element 3: Was the exposure sexual?
An accused’s exposure of their genitals is not sexual only because it is the genitals that are exposed.2
An accused’s exposure may be sexual due to:
- The fact that the accused seeks or gets sexual arousal or sexual gratification from the exposure; or
- Any other aspect of the exposure, including the circumstances in which it takes place and whether it is contrary to the community standards of acceptable conduct.3
“Can they prove that the exposure was sexual?”
It is not a defence that the accused was under a mistaken but honest and reasonable belief that the exposure was not sexual.4
Element 4: Was the exposure in a public place?
Whether the exposure was in a public place will be a matter of fact. It is sufficient if the exposure was ‘within the view of’ a public place.5 For instance, exposing your genitals through the front window of your house, which faces the street, would be sufficient to satisfy this element.
It is a defence to the charge if the accused was under a mistaken but honest and reasonable belief that the exposure was not in, or within the view of, a public place.
Questions in cases like this
- Did you intend to expose your genitals?
- Was the exposure sexual?
- Was the exposure within view of a public place?
What are some of the possible defences to Obscene Exposure?Defences to this charge can include a factual dispute, an honest and reasonable mistake of belief, an identification dispute, lack of intent, a mental impairment, or duress.
You should ring us and discuss your case if you have been charged. Deciding on whether to plead guilty or not has consequences for you and should be made after proper discussion with a criminal defence lawyer.
An accused who is found guilty of this offence may be sentenced to a prison term for a maximum of 2 years (Level 7 imprisonment).
Sentencing in the Magistrates’ Courts‘Sexual exposure’ is a relatively new offence. Sentencing statistics from the old offence of ‘obscene exposure’ provide some guidance as to sentencing trends.
From 1 July 2013 to 30 June 2016, there were a total of 383 cases (558 charges) of Wilful and Obscene Exposure in a Public Place that were heard in Victorian Magistrates’ Courts. These cases resulted in the following sentences:
- Community Correction Order – 30.3%
- Adjourned Undertaking/Discharge/Dismissal – 30.0%
- Fine – 18.8%
- Imprisonment – 17.0%
- Wholly Suspended Sentence – 2.9%
- Partially Suspended Sentence – 0.8%
- Youth Justice Centre Order – 0.3%
Of the fines imposed, the highest was between $3,000 and $4,000 although only 4.6% (aggregate) and 1.1% (non-aggregate) of those who were fined fell under this category. Majority of those who received financial penalties were in the “$1,000 < $2,000” category (18.2% for aggregate and 22.7% for non-aggregate).6
Please note that suspended sentences were abolished in Victoria for all offences committed on or after 1 September 2014.7
Other important resources
- SAC Statistics – Summary Offences Act 1966 (Vic) : s 19 – wilful and obscene exposure in a public place
Case studies related to Obscene Exposure
- Adjourned Undertaking for Behave in an Indecent Manner
- Obscene Exposure – Investigation Closed
- Good Behaviour Bond for Obscene Exposure
- Obscene Exposure – Not Guilty
 Section 19 Subsection 7 of the Summary Offences Act 1966.
 Section 19 Subsection 6 of the Summary Offences Act 1966.
 Section 19 Subsection 5 of the Summary Offences Act 1966.
 Section 19 Subsection 3 of the Summary Offences Act 1966.
 Section 19 Subsection 1 of the Summary Offences Act 1966.
 SAC Statistics – Summary Offences Act 1966 (Vic) : s 19 – wilful and obscene exposure in a public place < https://www.sentencingcouncil.vic.gov.au/sacstat/magistrates_court/7405_19.html >
 Suspended Sentence | The Sentencing Advisory Council < https://www.sentencingcouncil.vic.gov.au/about-sentencing/sentencing-options-for-adults/suspended-sentence >